Toby v. Secor

• Decision Date: 08 April 1884
• Citation: 60 Wis. 310,19 N.W. 99
• Parties: TOBY v. SECOR.
• Court: Wisconsin Supreme Court

60 Wis. 310

19 N.W. 99

TOBY

v.SECOR.

Supreme Court of Wisconsin.

Filed April 8, 1884.

Appeal from circuit court, Racine county.

Fuller & Fuller, for appellant, Miles Toby.

Hand & Flett, for respondent, Orlando Secor.

ORTON, J.

This is the common case of contest over the boundaries of land by adjoining owners. The evidence tended to show that both parties purchased their lands, and went into the possession and occupancy thereof, about the same time, and about 30 years ago, and that the defendant built line-fences on the lines denoted by the monuments then standing of the original government survey between his land and that of the plaintiff, and that afterwards the plaintiff, when he came into the possession of his land, joined with the defendant in building fences on the same lines, and they divided the fences between them as their respective shares or parts to be kept up and maintained on the same place and on the same lines by the parties. At one time the plaintiff set out a hedge on his portion of the line as a fence, and at another time he built a board fence on the same line. Both parties have occupied their lands according to the lines or boundaries indicated by such fences, and improved and cultivated the same, and acquiesced in such boundary lines, and believed that they were the true lines for a long time, and until a new survey was made by the county surveyor, in 1872, at the request of the plaintiff, and a new line established by such resurvey, and even after that, and near the time of the commencement of this suit, the defendant had never been notified that the old lines had been changed by that survey. The parties have continued to occupy and enjoy their respective premises according to the old lines indicated by such fences nearly to the time of the commencement of this suit without question or controversy. By the survey of 1872, and a survey agreeing therewith made recently, there are two narrow and uneven strips, of less than one acre in all, of the land so occupied by the defendant, on the north and west of the plaintiff's land, which the plaintiff seeks to recover in this suit. In addition to such practical location of the division lines between the parties, there was evidence tending to show that the fences built on such lines by them were placed upon the lines indicated by existing monuments of the government survey. This of itself might have justified the jury in rendering a verdict for the defendant, because, according to many cases in this court, such monuments must govern in such cases of subsequent controversy. But this question was not specially submitted to the jury by instructions.

The answer, after denying that the plaintiff was seized of these strips of land, or had any estate or interest in them, or that the defendant unlawfully withholds them, or that the plaintiff is entitled to the possession of them, sets up the defense of 20 years adverse possession and the statute of limitations. We have examined carefully the instructions of the court to the jury, and those asked by the plaintiff, and it seems to us that those given were unusually clear and correct, and embraced all of those asked by the plaintiff which ought to have been given. They were all in respect to the questions of adverse possession and the statute of limitations, ignoring all other defenses. Most of the instructions asked on behalf of the plaintiff were inapplicable to the case, there being no evidence to which they could apply. The instructions asked to the effect that if the jury find that at any time since 1865 the defendant recognized the plaintiff's title to these strips of land by trying to purchase them from him, or that if the defendant negotiated for their purchase, then he did not hold adversely, and they must find for the...